This weekend I have been at the Family Law Bar Association annual conference at Cumberland Lodge, which this year has an international family law theme.
Yesterday we heard two really illuminating presentations from foreign judges, who told us all about how they do transparency where they are. They were Ian Kennedy from Australia and Justice RJ Williams from Nova Scotia in Canada.
What was most interesting was that in each jurisdiction – here, Canada and Australia – there are common problems that have emerged, but our responses to them ave been quite different. So, for example, in Nova Scotia there is far greater transparency of private law proceedings (disputes between individuals not involving the State) than in public law proceedings (disputes involving the state such a care type proceedings) – whereas our own Transparency Guidance reflects the view that there is a more pressing need for transparency where the state is involved because of the more draconian powers being exercised and the greater public interest in knowing that justice is fairly done, whilst treating private disputes as more legitimately private (if not secret).
So, Australia first.
Australian Family court hearings are generally open to the public and press, although there is a power to make other provisions where warranted. There are however restrictions on publication of information in a manner which identifies parties, children or witnesses – somewhat similar but not identical to our s12 AJA 1960.
Vast numbers of judgments are published in Australia (some 1300 a year) on their equivalent of BAILII (Austlii). What is interesting is that those judgments are anonymised through a centralised Judgments Publication Office which operates through standardised guidelines. Some of us involved at the Transparency Project have had discussions about the current difficulties with our “system” of anonymisation – it isn’t really a system at all and relies on lawyers or judges to anonymise. It is time consuming and risky – we recently reported about a case where a judgment had to be removed because it inadvertently identified a family. We had begun to wonder if there might be some body tasked with the routine anonymisation of judgments and if there might be some standardisation or pro forma used – and now it seems that the Australians had already invented it! Ian Kennedy helpfully provided us with a handout containing the template / checklist used by the Australian courts to anonymise – they use psyeudonyms rather than initials for example, and these should be ethnically appropriate. And, as I know a number of us at the Transparency Project have suggested – the Australian courts publish only the year of birth of a child rather than their date of birth, to avoid things like identity theft or re-identification through the power of google. When I am at home and have the technical facilities I will scan and post that checklist document, which I will be using as an aide memoire when I next have to anonymise a judgment [update 15/05/15 – I’ve now done that here].
Interestingly, the Australian equivalent of s12 AJA, their s121 Family Law Act is punishable as a criminal offence, although the maximum penalty is a year’s imprisonment (less than our contempt provisions). Breaches are pursued by or with the consent of the DPP – and corporations as well as individuals may be prosecuted – and have been. Our lecture told us of one recent case where the Brisbane Courier Mail was fined $12,000 for particularly serious breaches of the act. As here, there are issues with individual aggrieved litigants publishing information identifying themselves and their children online in breach of the s121 provisions. Australian courts also have similar powers to injunct or relax the default provisions by making suppresssion / non-publication orders or permitting publication. Interestingly, “distress or embarrassment, even to minors, likely to arise from publication or publicity is not a sufficient reason to make a non-publication order.” In our jurisdiction the President in Re J in 2013, took the view that publication of pictures of a newborn baby were unproblematic due to his tender age and the consequent difficulty identifying him. As raised in the course of the lecture, what of harm, distress or embarrassment that a child may suffer later on in childhood – or even in adulthood – if such material remains online forever? These are familiar issues which the Australian courts seem also to be grappling with, and to which they have not yet found answers.
Ian Kennedy’s talk made clear that the problems of inaccurate, sensationalised or selective reporting of cases by the media is an international and intractable one. He says
it appears that Family Courts in all parts of the world will never be free from the allegations of bias, secrecy and capriciousness launched by parties unhappy with the process and outcomes – and fed by a media which is generally unwilling to report on cases objectively and informatively. But we keep trying!
Quite so. This is as much a problem here as there, and I suspect in many other countries too. The futility of relying upon the media to counter allegations of bias and secrecy is obvious – at the Transparency Project our focus is on finding other ways to broaden and rebalance the pool of publicly available information and this lecture has reinforced my belief that this is a necessary and worthwhile project.
Across continents to Canada, and Nova Scotia in particular. Where Justice Williams talked of the power of transparency to encourage social activism – and of examples where openness had led to positive change (through public disquiet at injustice leading to law reform), for public benefit.
Justice Williams talked of the risks and costs of transparency – the necessary loss of privacy, possible humiliation or embarrassment, the risk of ID theft, the impact upon children and relationships, and the risk that openness will itself reduce access to justice by discouraging people from using the court process. And finally, the risks associated with the permanency of the internet. Open court has been, said Justice Williams, distorted by the effect of massive search engines.
Like Australia, Canada also has a BAILII equivalent – and like BAILII it discourages google from crawling its site so that individual cases do not appear in google searches. Shockingly, we were told of a Romanian website that had been set up, which had copied or scraped the entire content of the Australian BAILII and made it crawlable – and then notified the parties to proceedings of the fact that their cases were now searchable online, offering to remove the record for a fee (Private law cases are not anonymised in Nova Scotia). That is not a risk here in family cases because they are generally published with initials not names, but in other sorts of disputes it could be. In Nova Scotia a third party may ask to see the file in a private family case, and there is a system for the giving of 20 days notice to the parties – and interestingly it is for the parties to apply within that window if they object to the sharing of the file. This is far removed from our approach to such matters in this jurisdiction. I am not sure what the position is in respect of public law cases, save that it appears to be rather more restrictive.
Finally, we were given an update from the President of the Family Division Sir James Munby on the Transparency reforms he has proposed in his consultation. Readers will recall the consultation opened last August and closed last October, since when there has been an eerie silence. The President told us yesterday that we should not expect a response until the Autumn, due to workload. However, it was plain that this is neither something that has been forgotten nor abandoned – whilst the President was disappointed that the responses to the consultation had not been more positive, and was somewhat critical of them for not being more constructive in terms of putting forward practical proposals for safeguards – he made plain that he intends to persist in reform of this area in some shape or form. He said that there was more wisdom distilled in the lectures we had heard than was contained in the hundreds of pages of consultation responses (glad our hard work is appreciated!). Like me he was impressed by the usefulness of looking at how other jurisdictions have solved common issues – for us the Australian standardised approach to the anonymisation of judgments is an obvious learning aid – and I suspect we will be seeing more use of the Australian Guidelines (I’d wager that the guidelines will be attached to the next President’s View). But the President was very clear that the prospect of a central unit (or even person) responsible for anonymisation prior to publication was unrealistic from a resource point of view. That is a shame, because such a system would relieve the current pressure on judiciary and lawyers, and would remove some of the arbitrariness and risk from the anonymisation process, which is an important safeguard for the privacy of participants that is currently lacking. Sir James offered the “personal” view that anonymisation was the responsibility of individual judges. There is a real tension between lawyers and judges here – neither of whom have the time or inclination to carry out the laborious task of anonymisation. And I suspect that the way in which that burden is distributed varies from judge to judge and area to area – it remains the position that some Designated Family Judges religiously publish all judgments, whilst a search on BAILII reveals a complete absence of published judgments from other areas (Newcastle, Leeds and Bristol make up the majority of the published judgments). Let us hope that when Autumn comes, there is some clarification and streamlining of the process of anonymisation – a consolidation and regularisation of the last tranche of reform as well alongside any new innovations.